Monday, July 11, 2016

Hillary Clinton and the Law

Last week, Trey Gowdy, the U.S. House Representative (R-SC) and former prosecutor, grilled the head of the FBI about why it was that the FBI wasn't going to prosecute/seek charges to be brought against Hillary Clinton for Clinton's careless and more than just a little too cute by half use of a private e-mail server.  Her decision was designed to shield her private communications and to allow her the convenience of having only one account she had to manage.  It was a lazy, conniving decision by Clinton and one which lead to potentially secret information being sent to a far less secure server than would have been provided had she followed the rules.  Further, Clinton (and her staff) said they'd gotten permission when in fact they hadn't.  They didn't ask for permission and had they, it wouldn't have been granted.  Instead she (or her staff) simply decided, imperiously, that they were going to do what they wanted.  Colin Powell had done something similar (but not the same), so why not they (or so the thinking went it seems).

Clinton compounded this error in judgment by failing to turn over the server on the day she left office as was required by regulation.  In that act, she violated the policy of the State Department, probably knowingly.

But, and here's the but, there is zero evidence Clinton knowingly passed along any confidential e-mail.  She wanted her privacy but she didn't act with any malice or intent to betray secrets and THAT is the standard for prosecution.  It is not that she was ignorant but ignorance of the law is no excuse as Gowdy wrongly suggested (and clearly he knows better as a former prosecutor).  Many laws have an intent requirement.  Nearly all of the e-mails which were in question (about 110), were classified AFTER the fact, so Clinton's forwarding of those (to the extent she did so), was neither illegal nor impermissible.  A handful were apparently classified when she received them and she forwarded them or responded to them from her private server but very clearly she was not aware they contained classified material. 

 The point is something called "mens rea" or guilty mind, in legal terms.  This is different than being ignorant of the law, as Gowdy tried to claim.  Had Clinton forwarded secret e-mails on purpose, even if she didn't know it was illegal, she could (and WOULD) have been prosecuted.  But you aren't prosecuted that illegal thing you did you didn't know you did.  That's a key difference.  In the United States, we don't prosecute people for unknowingly giving out bad investment advice even if they personally profit when it's followed - that's just giving bad advice.  On the other hand, we DO prosecute them for giving out bad advice from which they profit if they KNEW it was false.  That's  fraud and it's not the same thing as giving out bad advice.  You may be a foolish advisor but just because you advise someone to invest in the Edsel, if you believed it to be a good investment, you aren't put in jail, nor should you be.  On the other hand, if you know the Edsel has massive issues and that it is facing recall and you mislead an investor about it, well, you knew better and did it anyway.  So, it's not about ignorance of the law being somehow used as a shield, it's ignorance of the act.  IT's not that Clinton didn't know sending classified information was wrong or illegal, she did.  It's that Clinton didn't know she was sending classified.

As I said when I started out, what Clinton did was reckless.  I'm no huge fan of hers to begin with.  I think she's competent, but slimy like Bill was slimy.  Too clever by half all to often, but likewise I know she is capable and will implement policies which will be far better for the country than her opponent.  More important, while she's just a bit too slick for her own good, what she did was wrong but not illegal. By contrast, what George Bush, Dick Cheney and Donald Rumsfeld (among others) did was far FAR worse, they allegedly committed war crimes.  They deceived the American public about a threat, they presented things as fact which they were told were lies.  They opened illegal prisons in violation of international law and our own treaties. 

And then there's her opponent.  Donald Trump has been cited three times for employing illegal aliens (all settled out of court but the conduct is still illegal).  One time you might understand, maybe twice, but after that, you'd think Trump would demand compliance.  That we don't prosecute this (employing illegals) criminally is in itself a crime because it represents rampant exploitation, but it is none-the-less entirely against the law, and in so, goes well beyond what Clinton did.  What Clinton did was careless, what Trump did was on purpose.  He has also stiffed hundreds of companies over his years, failing to pay bill after bill after bill.  That's not careless, it's mean.  It's ALSO illegal.  Purportedly, he's been fined time and again, lost case after case, settled out of court to avoid massive fines but still, he had to settle.   I say words like purportedly and allegedly because Trump is notorious for suing people who expose his conduct.  When I weigh Trump's allegedly ACTUAL illegality against Clinton's slipperiness, when I weigh the kinds of things he's willing to do (which means, things like re-opening the Iraq war, overturning Roe-v-Wade, violating the Constitution and openly trampeling on basic rights).  When I weigh that, as much as I may not like Clinton, I find Trump to be wholly worse in every regard.  His proposals are terrible, his respect for the law non-existent and his legal transgressions are far worse than anything ever done by Clinton.

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